Interim Decision #1794 

MAlitai OF ACTIKTS 

In Section 246 Proceedings 

A-13449868 

Deckled by Board July 12, 1967 

Section 241(1) or the Immigration. and Nationality Act, as amended, and the 

Supreme Court decision in Immigration and Naturalization Service v. ErricoScott, 385 U.S. 214 (1966), art limited solely to a deportation proceeding and 

are not applicable to a rescission proceeding under section 246 of the Act. 

ON BEHALF or RESPONDENT: 

Angelo Karras, Esquire 

79 West Monroe Street 

Chicago, Minoin 60803 

(Brief filed) 

OR BEHALF or BEM= 

Irving A. Appleman 

Appellate Trial Attorney 

(Brief filed) 

The respondent, a native of Greece and a citizen of Australia, appeals from an order entered by the special inquiry officer on February 

13, 1967 rescinding his adjustment of status on May 7, 1964 under 

section 245 of the Immigration and Nationality Act. Counsel on appeal 

urges error in that the special inquiry officer's decision is contrary to 

a decision rendered by the Supreme Court in the case of the Immigration and Naturalization Service v. Enrico-Scott, 385 U.S. 214 (1966). 

The facts of the case are fully set forth in the opinion of the speoial 

inquiry officer and are not in dispute. Briefly, they establish that the 

respondent, a married alien, 31 years of age, last entered the United 

States through the port of Huron, Michigan on February 15, 1964. 

He was admitted as a nonimmigrant visitor. He married a citizen of 

the United States at Chicago, Illinois on February 21, 1964. A visa 

petition filed by his wife was approved by the Immigration Service 

and on May 7, 1964 his status was adjusted to that of a permanent 

resident alien under section 245 of the Immigration and Nationality 

Act. 

A notice of rescission was served upon the respondent on August 4, 

1965. It charges, inter alia, that the respondent was not eligible for an 

adjustment of his status on May 7, 1964 because he was not legally married to a citizen of the United States and therefore not entitled to 

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classification as the spouse of a United States citizen under section 

101 (a) (27) (A) of the Immigration and Nationality Act because at 

the time of his marriage on February 21, 1964 he was then lawfully 

married to Sylvia Alemis, nee Chemello, then residing at Sydney, Australia. The special inquiry officer finds that the respondent was not 

eligible for an adjustment of his status under section 245 of the Immigration and Nationality Act on May 7, 1064 because an immigration 

visa was not immediately available to him since he was, at the time of 

his last entry, a quota alien and the nonpreference portion of the quota 

for Greece was then oversubscribed. 

Counsel for the respondent contends that the respondent acted in 

good faith when he married Christine Koulis on February 21, 1964 as 

he honestly believed that he had been divorced by his first wiferand was 

then free to marry. The record establishes that the respondent divorced 

his first wife on March 81, 1965 ; that he remarried his citizen wife on 

April 13, 1965 ; that they have lived together as man and wife and that 

a child was born to the respondent and his wife at Chicago, Illinois on 

December 27, 1965. Counsel argues that the respondent's case is governed by the decision of the United States Supreme Court in the case of 

lownloratio' v. and Na.ftralisettion Service v. Enrico -Scott, 885 U.S. 214 

(1966). The Errico-Scott case involved two aliens who obtained a perferred immigration status by fraud and misrepresentation. The issue 

before the Supreme Court was whether section 241 (f ) of the Immigration and Nationality Act saves an alien from deportation who misrepresents his status for the purpose of evading quota restrictions, if he 

has the necessary familial relationship to a United States citizen or 

a lawful permanent resident alien. The respondent now has the relationship required by section 241(f) (supra)? 

The respondent relies upon section 241(f) of the Immigration and 

Nationality Aot as it has been construed by the United States Supreme 

Court in. the Errioo-Scott case (supra) to avoid the withdrawal of his 

status as a permanent resident alien. The court stated that "the fundamental purpose of this legislation was to unite families" and that to 

give meaning to the statute it must be construed as saving from deportation an alien who misrepresents his status for the purpose of evading 

quota restrictions provided he has the required relationship to a United 

Section 241 (f ) reads as follows: 

The provisions of this section relating to the deportation of aliens within the 

United States on the ground that they were excludable at the time of entry as 

aliens who have sought to procure or have procured visas or other documentation 

or entry into the United States by fraud or misrepresentation shall not apply 

to an alien otherwise admissible at the time of entry who is a spouse, parent, or 

a child of a United States citizen or an alien lawfully admitted for permanent 

residence. 

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States citizen or lawful permanent resident alien. Counsel maintains 

that the respondent is within that class of aliens sought to be protected 

by section 241(f) from their misrepresentation in procuring visas or 

.other documentations since he is the spouse and parent of a wife and 

son who are citizens of the United States. 

The issue before us, however, is whether the respondent was "eligible" 

for the adjustment of status which he received on May T, 1904. There 

is no question but that a bona fide marriage was not in existence at the 

time the respondent's status was adjusted under the provisions of section 245 of the Immigration and Nationality Act. There is evidence 

of record that the respondent has now adjusted his marital status and 

should deportation proceedings be instituted he would have available 

to him those '.venues of discretionary relief which are available to other 

aliens in his position. There is no showing in this record that the respondent cannot adjust his immigration status under section 245 of the 

Immigration and Nationality Act if he again applies for such relief 

based on his present legal marriage. 

The Errico-Scott decision (supra) relates specifically to deportation 

proceedings instituted against aliens who enter the 'United States after 

fraudulent evasion of quota restrictions. Section 611(f) by its very 

terms has reference only to a deportation proceeding. It has no application to a rescission proceeding under section 216 of the Immigration and Nationality Act. We conclude on the basis of the foregoing that the application of the Eyrie° and Scott decision by the Supreme Court is limited solely to a deportation proceeding and is not 

applicable to a rescission proceeding under section 246 of the Immigration and Nationality Act. The appeal will be dismissed. 

ORDER : It is ordered that the appeal be and the same is hereby 

dismissed, 

458